Citation Nr: 1801258
Decision Date: 01/09/18 Archive Date: 01/19/18
DOCKET NO. 15-17 541 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine
THE ISSUE
Entitlement to an earlier date for compensation under 38 U.S.C.A § 1151 for a bilateral foot condition.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
C. Ryan, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1987 to April 2002.
This matter arose to the Board of Veterans' Appeals (Board) from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.
The Veteran participated in a video conference hearing before the undersigned Veterans Law Judge (VLJ) in December 2015. A transcript of the hearing is associated with the Veteran's record.
FINDING OF FACT
The VA failed to timely disclose pertinent medical information to the Veteran concerning his foot surgeries.
CONCLUSION OF LAW
The Veteran's due process rights were violated due to a failure to disclose information.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran contends that he should be awarded an earlier effective date for compensation under 38 U.S.C. § 1151. For the following reasons, the Board finds an earlier effective date warranted.
In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b).
In this case, the line of inquiry is not whether the Veteran is entitled to benefits under 38 U.S.C. § 1151 but, rather, the day upon which the Veteran's entitlement arose. There is no dispute that the Veteran is entitled to 38 U.S.C. § 1151 benefits due to the negligence of a VA physician.
The relevant facts are as follows: the Veteran suffered from pes planus prior to his military service. While in service, he aggravated his pes planus due to standing on ladders all day. To treat his foot pain, he received care from Dr. Thomas Franchini.
From March 2005 to February 2007, Dr. Franchini, a podiatrist at the Togus, Maine VA Hospital, performed seven corrective surgeries on the Veteran in an attempt to ameliorate his pes planus. The Veteran filed claims several times for his bilateral foot condition and was repeatedly denied by the VA, as the VA refused to find a nexus between the Veteran's in-service foot pain and treatment from Dr. Franchini and his post-service treatment from Dr. Franchini. The doctor's practices have come under scrutiny by multiple media organizations, including USA TODAY. In 2010, the VA stopped allowing Dr. Franchini to see patients, and he resigned. In 2013-years after the VA was aware of Dr. Franchini's negligent behavior-the VA informed the Veteran that he received substandard care under Dr. Franchini and advised him to file a tort claim and a claim for compensation under 38 U.S.C. § 1151 against the VA. On behalf of the Veteran, the VA Hospital in Maine submitted a letter to the RO explaining that the Veteran's foot condition was caused by the negligence and carelessness of a VA employee. Following the advice of VA, the Veteran filed for 38 U.S.C. § 1151 compensation and was awarded benefits, effective the date he filed his claim, April 31, 2013, based upon the VA's testimonial letter.
The Veteran believes he should be awarded an earlier effective date. Specifically, he argues his award of compensation under 38 U.S.C. § 1151 should be effective on the date of the first surgical procedure performed by Dr. Franchini. A later effective date, he contends, would be a miscarriage of justice.
In 2009, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a veteran seeking entitlement to service connection enjoys a due process right to fair adjudication of his claim for benefits. Cushman v. Shinseki¸576 F.3d 1290 (Fed. Cir. 2009). In Cushman, a VA employee improperly altered the claimant Veteran's medical records. Based upon those altered documents, the Veteran was denied benefits, despite his eligibility. After an investigation, the Veteran filed a new claim, seeking the benefits he originally sought. The Board and the Court of Appeals for Veterans Claims (Court) determined that there was no legal remedy available. After the Veteran filed suit in federal court, the Federal Circuit found the Veteran enjoyed a due process property right to a fair adjudication of his claim for benefits and vacated the Court's decision.
Specifically, the Federal Circuit held that the Veteran enjoyed a legitimate claim of entitlement to disability benefits, as he was injured while serving, and, as such, a property right attached to his benefits. The Federal Circuit found that the Veteran did not receive adequate process, despite receiving several hearings before the Board and the Court, because all of the hearings relied upon tainted evidence. The Veteran argued, and the Federal Circuit agreed, that the government failed to fairly apply the existing procedures in his case due to the introduction and consideration of improperly altered medical records. As such, the Veteran was due readjudication of his claim.
Returning to the facts of this case, the Board finds many parallels between the Veteran's situation and the claimant in Cushman. Both cases turn on malfeasance perpetrated by agents of VA. Here, if VA had informed the Veteran of Dr. Franchini's medical malfeasance following his initial surgery, and provided him with the critical nexus letter, the Veteran could have won his case for benefits and received them at a much earlier date. He filed claims multiple times. Here, the withholding of information from the Veteran is akin to the VA employee in Cushman improperly altering documents, and thus effectively preventing the Veteran from substantiating an otherwise valid claim. In Cushman, the only reason the Veteran did not receive service connection was due to a VA employee altering his records; in this case, the only reason the Veteran did not receive benefits was because the VA-despite its knowledge of the doctor's negligence-failed to inform the Veteran of the negligence and failed to provide the critical evidence to VA that allowed the Veteran to receive compensation.
Accordingly, in this case, the Board finds that the Veteran's procedural due process rights have been violated. Consequently, the Board finds the Veteran eligible for compensation under 38 U.S.C. § 1151 as of the date of his first surgery, March 5, 2005.
ORDER
The Veteran is entitled to an effective date of March 5, 2005 for his award of compensation under 38 U.S.C. § 1151 for his bilateral foot condition.
____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs